About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

36 U. Cin. L. Rev. 70 (1967)
Avoiding Probate of Decedents' Estates

handle is hein.journals/ucinlr36 and id is 88 raw text is: AVOIDING PROBATE OF DECEDENTS' ESTATES GILBERT A. SHEARD * I. INTRODUCTION A man may desire to make disposition of his property in his lifetime, to avoid administration of his estate after death. Indeed, in view of the fact, both patent and painful, that the fiercest and most expensive litigation, engendering the bitter- est feelings, springs up over wills, such a desire is not unnatural) From its beginning in the proving of testaments in the early days of Norman England,2 our modern probate system has gradu- ally evolved through the Statute of Wills,3 the migration of the common law,4 and the enactment of modern legislation.5 Today, probate is a highly developed statutory procedure 6 administered by the probate court.7 Under traditional estate planning concepts, probate is an in- tegral part of the estate plan of every individual with a substantial estate. Recently, however, this traditional concept has been challenged by the premise that probate is a burden which every- one can and should avoid by use of revocable inter vivos disposi- tions of all his property. This Article is an examination of that premise. Its purposes are to discuss the favorable and unfavorable aspects of probate, to examine the inter vivos tools whereby an owner can both retain effective control over his property for life and avoid administration entirely, and to compare the practical aspects of using each. Although outright gifts and irrevocable trusts keep assets out of probate, they are omitted from this Article since they require the owner to give up control over his * B.S. 1959, Northwestern University; LL.B. 1962, Harvard University; Graduate Study 1962-1963, London School of Economics. Member of the Illinois and Ohio Bars. I Nichols v. Emery, 109 Cal. 323, 331, 41 Pac. 1089, 1092 (1895). 2 See PAGE, WLs.s § 521 (2d ed. 1926). 332 Hen. 8, c. 1 (1540). 4See PAGE, WILLs § 21, at 36 (2d ed. 1926). 6 E.g., OHIO REv. CODE §§ 2107.01-.64 (1953). For an example of an early appli- cation of this legislation see Swasey v. Blackman, 8 Ohio 5 (1837). $OHIo REV. CODE §§2101-31 (1953). 7 OHIO CONST. art. IV.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most